Archive for the ‘Planning Today for Tomorrow’ Category

Raskin & Makofsky | Experts in Elder Law, Estate Planning, Medicaid and More

Here at Raskin & Makofsky we are experts in the field of elder law. Serving the Long Island area we care about helping you with Medicaid, estate planning, wills, trust, asset protection and more. Whether you are helping an elderly loved one or getting your own affairs in order at Raskin & Makofsky we have the expertise and experience you need.

Delegation to Cuba

On December 14, 2012, Ellen Makofsky and Judy Raskin returned from a fascinating trip as members of a delegation to Cuba on behalf of the National Academy of Elder Law Attorneys, Inc. to analyze the long term care system in that country. We met with Cuban officials and attorneys regarding how Cuba delivers and finances services to its elderly and disabled population. Particularly interesting was the cultural perspective and how that affects the way care is provided. We will be writing about our trip and what we learned in the near future.

Granny Pods

We became aware of a new option to keep an elderly parent at home when reading an article in the New York Times on May 8th.  We wanted to share this information as it might be a perfect solution for someone out there.

A few companies offer small stand alone pre-fabricated cottages that can be placed a backyard. The cost seems to range from about $67,000 to $85,000 which represents about 5 months in a nursing home in the New York area. The parent has independence and the children can easily provide assistance when needed.  Safety and convenience issues are addressed and kitchen and bath are included. In the United States these units are sometimes referred to as “granny pods.”

The article says that many states are allowing these buildings and New York is considering legislation to permit them.

A Retained Life Estate May No Longer Avoid Medicaid Recovery

A retained life estate is itemized in new Medicaid law and regulations as a type of non-probate asset now included in the definition of “estate” for Medicaid recovery purposes. Therefore, a deceased Medicaid recipient’s interest in a retained life estate may now be available for Medicaid recovery on the death of the Medicaid recipient.

The potential recovery of this interest was not anticipated when many parents even years ago transferred their home by deed to a child or children and retained a life estate.  We expect that Medicaid’s legal right to recover from a life estate interest will be challenged in court in the near future. However, we do not know what the results of that litigation might be and as of now the retained life interest is a recoverable asset.

The owner of a retained life estate may have options available to protect the life estate interest.  This will depend upon the individual’s particular situation.

Budget includes expanded Medicaid Recovery

We now have the wording of the NYS Budget Bill in regard to the expanded recovery from estates of Medicaid recipients. The legislation states that in addition to assets passing under a valid will or by intestacy,

“..an individual’s estate also includes any other property in which the individual has any legal title or interest at the time of death, including jointly held property, retained life estates, and interests in trusts, to the extent of such interests;…”

The legislation takes effect April 1, 2011. There is no reference to grandfathering such  assets created prior to the effective date. There will be efforts made to modify the legislation to include grandfathering. Hopefully these efforts will be successful.

Medicaid planning will be significantly affected by this new legislation.

Can an agent amend a trust?

A recent New York case held that an agent under a Power of Attorney cannot amend a trust on behalf of the principal unless the principal’s Power of Attorney specifically grants that power to the agent. The case is Perosi v. Ligreci, 2011 NY Slip Op 21048 (Supreme Court, Richmond County, February 14, 2011.) This decision confirms that you must think very carefully about what you want your agent to be able to accomplish on your behalf when signing a Power of Attorney and specifically provide for the needed authority in your document.

In our office we post an interesting saying every week. I will be adding our weekly saying to my blogs. This week’s saying is:

“Do not let what you cannot do interfere with what you can do.”  -John Wooden

Medicaid Ordered to Provide Temporary Home Care Services

A woman applied to the Human Resources Administration (HRA) in New York City for Medicaid home care services under the community Medicaid program. Her application was approved subject to determination of her personal care needs. The woman advised HRA that she was in immediate need of 24 hour home care in two shifts. Medicaid denied her request. The denial was upheld at a fair hearing. The applicant then appealed to the New York Supreme Court.

The Court ordered HRA and the New York Department of Health (DOH) to issue regulations setting out the step by step procedure for Medicaid applicants to follow in order to receive temporary personal care services. HRA and DOH were also ordered to implement plans to facilitate the procedures and to notify Medicaid applicants of the availability of temporary services.

Ninety Is Not The New Sixty

We all like to think that we will live a really long time. Although many of us harbor fantasies of being able to retain our youthful hearts and bodies, ninety is not the new sixty.  Young-old is different from old-old and we need to be sure that we are prepared for it. Susan Jacoby authored a thoughtful essay in the December 31, 2010  edition of the New York Times entitled Real Life Among the Old Old.   In her essay Ms. Jacoby reflects on her Mom who appeared active and ageless at 75 but who at ninety, has no more “adventures” in her future, because pain from age related illnesses made the smallest errand an “excruciating effort.”

Modern medicine has many living longer and longer.  According to Ms. Jacoby the over 85 set is the largest growing segment of the over 65 population and at least fifty percent of this population  will spend some time in a nursing home before they die because of a mental or physical disability. Ms. Jacoby’s musings point out  that we all need to have a plan for health care decision-making, surrogate financial decision-making and a plan for protecting assets in the event long term care is required at home or in in a nursing home.  Ninety is not the new sixty, do you have a plan?

Does Your Power of Attorney Provide for Creation of Pooled Trusts?

There may come a time when you are seeking to apply to the Medicaid program to provide an aide at home. If you are eligible and have income over the Medicaid income allowance ($787 in 2010) Medicaid will direct that you pay your excess income to the agency providing the aide.  However, you have a there may come a time when you are seeking to apply to the Medicaid program to provide an aide at home. You have a much better alternative: to open a pooled trust account with a non-profit trust company. The pooled trust will receive your excess income, charge a reasonable fee, and pay your bills with the excess income.

The problem we have seen occurs when the person needing the home care services is no longer capable of entering into legal transactions and cannot set up the pooled trust. In that case the agent under the Power of Attorney can do so if the document specifically gives the agent the authority to create and fund trusts. If the authority has not been given, the next option would be to start a guardianship proceeding to allow for the trust to be set up. This is a costly and time consuming effort.

If your agent does not have the authority specifically stated to create and fund trusts you may want to consider revising your Power of Attorney, a much better alternative: to open a pooled trust account with a non-profit trust company. The pooled trust will receive your excess income, charge a reasonable fee, and pay your bills with the excess income.

The problem we have seen occurs when the person needing the home care services is no longer capable of entering into legal transactions and cannot set up the pooled trust. In that case the agent under the Power of Attorney can do so if the document specifically gives the agent the authority to create and fund trusts. If the authority has not been given, the next option would be to start a guardianship proceeding to allow for the trust to be set up. This is a costly and time consuming effort.

If your agent does not have the authority specifically stated to create and fund trusts you may want to consider revising your Power of Attorney.

Super Lawyer 2010

I have just returned from a New York State Bar Association Elder Law Section Meeting where I addressed Section Members on the newest developments regarding surrogate health care decision-making. This happened to roughly coincide with the publication of the Top 50 Women SuperLawyers List, and many of my colleagues at the meeting congratulated me for making the list.  I feel honored, though I have to say it is an unusual feeling to be publicly acknowledged in this way.  Our firm works hard to help people with their problems, so it’s a funny thing  when word gets around!

It has been a great year for our firm, Raskin & Makofsky, because  both my partner Judy Raskin and I were named to the SuperLawyers List in the Elder Law category. We are very proud to have both firm partners named and to be two of the twenty nine listed Elder Law attorneys in the New York Metropolitan area. The SuperLawyers List, which begins with nomination by one’s peers and factors in credentials, experience, and awards, represents the top five percent of lawyers in New York State. That must also mean that our clients are in the top five percent as well, doesn’t it?